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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED October 26, 2017

v No. 334380 Wayne Circuit Court

JOHN CHRISTOPHER

- CHARLE GASTON, LC No. 13

- 003484

- 01

- FH

Defendant

- Appellant.

Before: B ORRELLO

, P .J., and M URPHY and R ONAYNE K RAUSE , JJ.

P ER C URIAM

.

This case returns to th is Court after a protracted procedural history. Defendant was found guilty by a jury of criminal sexual conduct, third degree (CSC III

— force or coercion), MCL 750.520d(1)(b). This Court ’ s first opinion contains the following brief summary of the underlying facts in this case:

Defendant was convicted of vaginally penetrating the then 15

- year

- old complainant. Defendant, the son of a family friend, followed complainant into

the bathroom of his mother ’ s home and then vaginally penetrated her. The evidence at trial consisted primarily of complainant ’ s t estimony about the assault and forensic evidence showing defendant ’ s DNA on complainant ’ s neck, where he had kissed her during the assault. The sexual assault forensic examiner who

examined and treate d complainant testified tha t she found no external phys ical injury but discovered redness and point tenderness during the genitalia examination consistent with complainant ’ s version of events. [ People v Gaston (Gaston I) , unpublished opinion per curiam of the Court of Appeals, issued February 26, 2015 (Docket No. 319018, p 1).]

Defendant was sentenced, as a habitual offender fourth, MCL 769.12, to serve 20 to 30 years in prison.

Defendant appealed, arguing that hearsay evidence had been improperly introduced at

trial and that the sentencing court made sev eral mistakes in sentencing. Th is Court affirmed

defendant ’ s conviction, but remanded for resentencing because offense variable (OV) 8 was improperly scored at 15 points. Gaston I

, unpub op at 4. The Court held that “ [t]here was no evidence that complainant was ‘ asported ’

. . . , ” and “ the correct scoring of OV 8 would alter

defendant ’ s sentencing guidelines . . . ” Gaston I

, unpub op at 4, citing People v Francisco , 474- 2

- Mich 82, 89 n 8; 711 NW2d 44 (2006). The major ity rejected defendant ’ s sentencing issues as they related to judicial fact

- finding, following People v Herron , 303 Mich App 392, 403

- 405; 845 NW2d 533 (2013), which was overruled by People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015). D efendant, acting in propria persona , filed an application for leave to appeal to the Michigan Supreme Court, reiterating the issues presented in Gaston I that he did not prevail on, and arguing that he received ineffective assistance of counsel and that his refusal to adm it guilt

and lack of remorse w ere improperly used against him at sentencing. The prosecution also filed an application for leave to appeal, reiterating the issues that it failed to prevail on in Gaston I

.

In an order that encompassed both party ’ s appli cations, the Michigan Supreme Court, in lieu of granting leave to appeal, stated:

[W]e VACATE that part of the judgment of the Court of Appeals that vacated the defendant’s sentence and remanded for resentencing, and we REMAND this case

to the Court of A ppeals for reconsideration in light of People v Lockridge , 498 Mich 358 (2015). In all other respects, leave to appeal is DENIED because we are not persuaded that the remaining questions presented should be reviewed by this Court. [ People v Gaston , 498 Mich 900; 870 NW2d 909 (2015).]

On remand, th is Court again determined that the scoring error was “ a Francisco error, not

a Lockridge error ” since “ the sentencing court ’ s sentencing decision was in error, not because it engaged in judicial factfinding, but because there was no evidence to support the scoring

decision. ” People v Gaston (On Remand) , unpublished opinion per curiam of the Court of Appeals, issued January 14, 2016 (Docket No 319018). Th is Court held: “ G iven that the court ’ s sentencing decis ion in this case was based on inaccurate information regarding the scoring of OV 8, resentencing under Francisco is required. ” Id . The case was remand[ed] for resentencing and

the Court noted that “ the sentencing court shall resentence defendant guided b y, but not bound, by the sentencing recommendation for the guidelines when OV 8 is scored at zero points. ” Id . at
3 ( footnote omitted )

.

Defendant now appeals from his sentence on remand of 190 months to 30 years in prison,

which was within the guidelin e range of 57 months to 190 months. B ecause another panel of this

Court determined that MCL 769.34(10) was unchanged by the decision in People v Lockridge

, 498 Mich 358; 870 NW2d 502 (2015), this C ourt must affirm defendant ’ s sentence.

Defendant argues that the circumstances of the offense and this offender make the sentence unreasonable. Defendant points to the fact that his previous arrests were for “low severity felony theft convictions” and ordinance violations, along with his juvenile assault arme d robbery adjudication. Defendant also argues that while he has been found guilty of seven misconduct violations while in prison, he has completed several certifications in self

improvement p rograms, and has earned his GED . None of defendant’s arguments suggests that the sentence is unreasonable, however.

This Court reviews the reasonableness of a sentence by applying the principal of proportionality set forth in People v Milbourn , 435 Mich 630; 461 NW2d 1 (1990), overruled by statute as recognized in People v Armisted , 295 Mich App 32, 51; 811 NW2d 47 (2011). People

v Steanhouse

, ___ Mich ___ ; ___ NW2d ___ (2017) (Docket Nos. 152671, 152849, 152871 to- 3

- 152873, and 152946 to 152948). According to the Michigan Court of Appeals in Steanhouse

, under the Milbourn test, “a given sentence [could] be said to constitute an abuse of discretion if that sentence violate[d] the principle of proportionality, which require[d] sentences imposed by the trial court to be proportionate to the seriousness of the circumst ances surrounding the offense

and the offender.” People v Steanhouse , 313 Mich App 1, 45; 880 NW2d 297 (2015) (quotation marks and citation omitted; alterations in Steanhouse ), affirmed in part, reversed in part, ___ Mich ___ (2017) (Docket Nos. 152671, 1 52849, 152871 to 152873, and 152946 to 152948). The Court of Appeal’s Steanhouse panel identified the following nonexclusive factors as relevant in determining whether a sentence was proportionate:

(1) the seriousness of the offense; (2) factors that we re inadequately considered by the guidelines; and (3) other factors not considered by the guidelines, such as the relationship between the victim and the aggressor, the defendant’s misconduct while in custody, the defendant’s expression of remorse, and the defendant’s potential for rehabilitation. [ Id . at 46 (citations omitted).]

Defendant was convicted of rap ing a 15

- year

- old family friend. The victim testified that she had known defendant since she was five or six years old

. Defendant did not expres s remorse until his second sentencing and is a fourth habitual offender. These factors, identified as relevant in determining proportionality according to Steanhouse , suggest that 190 months is not an

unreasonable minimum sentence.

Furthermore, MCL 769 .34(10) states, in relevant part: “ If a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or

inac curate information relied upon in determining the defendant ’ s sentence. ” Like the defendant

in People v Schrauben , 314 Mich App 181; 886 NW2d 173 (2016), defendant “ does not dispute that his sentence was within the recommended minimum guidelines range, an d he does not argue that the trial court relied on inaccurate information or that there was an error in scoring the guidelines. ” Schrauben , 314 Mich App at 196 ( footnote omitted )

. Schrauben noted that Lockridge “ did not alter or diminish MCL 769.34(10)

, ” i d . at 196 n 1

, and therefore held that

“ this Court must affirm the sentence. ” Id . at 196.

Here, defendant was sentenced to a minimum of 190 months ’ imprisonment. His minimum sentencing guidelines range was 57 to 190 months. Defendant does not alleg e that his guidelines were scored incorrectly, or that they were based on incorrect information. Defendant simply alleges that his sentence is unreasonable. However, a reasonableness and proportionality argument is only applicable in cases where a minimu m sentence departs from the recommended guidelines range. Schrauben , 314 Mich App at 196.

Defendant also argues, in a S tandard 4 brief filed pursuant to Administrative Order 2004

- 6 , that he received ineffective assistance of counsel at trial, and at his second sentencing.

Defendant ’ s claims that his trial counsel was ineffective are squarely outside the scope of the remand order from the Michigan Supreme C ourt to the Court of Appeals, which remanded the case for resentencing only

, and as such will no t be considered by this C ourt. See People v Blue

, 178 Mich App 537, 539; 444 NW2d 226 (1989). Defendant ’ s claims that he received ineffective assistance of counsel at his second sentencing are considered, but are meritless.- 4

- Defendant first claims that he was denied the effective assistance of counsel because, at sentencing, his counsel failed to object to the scoring of OV s 3 and 4. An attorney ’ s failure to

argue for the proper sentencing guidelines may satisfy the prejudice prong of the ineffective

a ssistance of counsel test, Glover v United States , 531 US 198; 121 S Ct 696 ; 148 L Ed 2d 604 (2001), but first, the defendant must show that counsel ’ s performance fell below an objective standard of reasonableness under prevailing professional norms. See People v Davis , 250 Mich App 357, 368

- 369; 649 NW2d 94 (2002) ; Strickland v Washington , 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984)

.

Defendant first argues that his counsel should have objected to the scoring of OV 3. The scoring of OV 3 was the subject of a prior appeal, and this C ourt “ concluded that the sentencing court did not err in scoring OV 3 ” and, relying on People v Herron , 303 Mich App 392; 845 NW2d 533 (2013), overruled 498 Mich at 399 (2015)

, “ rejected defendant ’ s objection to the guidelines scoring insofar as it related to judicial factfinding

. ” Gaston (On Remand) , unpub op

at 1. Because reviewing courts had already affirmed the scoring for OV 3, sentencing counsel cannot be ineffective for failing to object. See People v Putma n , 309 Mich App 240, 245; 870 NW2d 593 (2015) (stating “ counsel is not ineffective for failing to raise meritless or futile objections. ” ).

Counsel is also not ineffective for failing to object to the scoring of OV 4, which was scored at 10 points. Firs t, such objection would have had to have been made during the first appeal. Second, a heightened score for OV 4 is appropriate, and sentencing counsel cannot be ineffective for failing to object. See Putman , 309 Mich App at 245 (stating “ counsel is not

i neffective for failing to raise meritless or futile objections. ” ). OV 4 concerns psychological injury to a victim, and requires a court to score 10 points if “ [s]erious psychological injury requiring professional treatment occurred to a victim. ” MCL 777. 34(1)(a).

Defendant does not explain why he believes that OV 4 was scored improperly; “ [a]n appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory trea tment with little or no citation of supporting authority. ” People v Kelly , 231 Mich App 627, 640

- 641; 588 NW2d 480 (1998). “ Failure to brief a question on appeal is tantamount to abandoning it. ” Mitcham v

Detroit , 355 Mich 182, 203; 94 NW2d 388 (1959). Furthermore, the complainant ’ s mother wrote in the victim impact statement that, due to the rape, the complainant “ has been seeing a [therapist] (at her school) as well as a psychiatrist (outside of school ) . Since when calculating sentencing guidelines, a court can consider all record evidence, including the contents of a presentence investigation report

, People v Johnson , 298 Mich Ap p 128, 131; 826 NW2d 170 (2012) , such information wa s properly considered to increase defendant ’ s OV 4 score. Since counsel cannot be ineffective for failing to raise meritless objections, his failure to object to the heightened score for OV 4 is not ineffective assistance. See Putman , 309 Mich App at 245.

Finally, defendant claims that this cou rt should overrule precedent, which states that mitigating factors need not be considered at sentencing. See, e.g. People v Endres , 269 Mich App 414; 711 NW2d 398 (2006), overruled on other grounds in People v Hardy , 494 Mich 430,

43 n 18; 835 NW2d 340 (2 013), stating that Blakely v Washington , 542 US 296; 124 S Ct 2531 (2004), which requires trial courts to review all mitigating factors, does not apply to sentencing in Michigan. “ A published opinion of the Court of Appeals has precedential effect under t he rule- 5

- of stare decisis. ” MCR 7.215( C )( 2 ). Moreover, “ [a] panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modi fied by the Supreme Court, or by a special panel of the Court of Appeals as provided in this rule. ” MCR 7.215(J)(1). While the court rule provides for a conflict procedure when a panel of this Court disagrees with a prior opinion, defendant has not made any compelling argument for invoking the conflict procedure.

Affirmed.

/s/ Stephen L. Borrello /s/ William B. Murphy /s/ Amy Ronayne Krause